Must I Show I Was Truly Afraid Of The Defendant To Obtain A Final Restraining Order?

May 25, 2015
By
Edward R. Weinstein

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Yes. Our law firm located in East Brunswick, New Jersey, is armed with
savvy lawyers who understand that a judge of the Superior Court of New
Jersey must be persuaded that the victim is truly afraid of the alleged
domestic abuser in order to issue a Final Restraining Order. As a seasoned
restraining order attorney I t decided to analyze this recent New Jersey
Appellate Court decision in which the victim was not found to be truly
fearful as he had blocked the “victims” ability to leave his office.

In
R.M. v. L.A.G., the parties were married for twenty-four years and both parties were
lawyers. The parties had four children born of the marriage. During a
three-year period from 2013-2016, the parties experienced marital difficulties.
R.M. moved out of the marital home at that time, but the parties continued
to communicate about their finances and their children. The parties communicated
about tax papers that R.M. needed to review and L.A.G. went to R.M.’s
office on April 11, 2016 to drop off the documents. L.A.G. had also set
up marriage counseling for the parties, which she wanted to discuss with
R.M. L.A.G. saw R.M. in the parking lot of his office, gave him the tax
papers, and asked to speak with R.M. about marriage counseling. R.M. stated
that he was leaving to get water, so L.A.G. went to R.M.’s office
to wait for him. R.M. did not return to his office and a text message
conversation ensued between the parties. R.M. told L.A.G. that they would
talk at home, but L.A.G. stated she wanted to meet in R.M.’s office
and that she was looking at R.M.’s emails.

L.A.G. was sitting at R.M.’s desk taking pictures of the computer
screen when R.M. returned. R.M. asked L.A.G. to leave his office, but
L.A.G. threw a paperweight into a bin and yelled at R.M. L.A.G. then proceeded
to rip up R.M.’s mail and throw a binder. She also removed R.M.’s
webcam from his computer and threw two picture frames on the floor. R.M.
called the police and L.A.G. was heard in the background stating that
she was being held against her will and being kidnapped. R.M. stood by
the door and prevented L.A.G. from leaving. L.A.G. stated that she accidentally
scratched R.M.’s face when she was trying to leave. The incident
ended when the police arrived and R.M. and L.A.G. subsequently filed cross-complaints
alleging domestic violence with the New Jersey Superior Court Family Part.

The trial court denied L.A.G.’s request for a final restraining order
after determining L.A.G. failed to prove that R.M. committed a predicate
act. A predicate act is an earlier wrongdoing or offense that is closely
related to the offense or wrongdoing being alleged. The judge found that
L.A.G. did not demonstrate that R.M. committed the predicate acts of harassment
and false imprisonment. The judge did determine that R.M. proved that
L.A.G. committed the predicate acts of harassment and criminal mischief;
however, the judge found that R.M. did not demonstrate that L.A.G. committed
the predicate act of assault. Although the judge found that predicate
acts were committed, the judge did not find that a final restraining order
was necessary to prevent R.M. from future acts of harm or violence.

The judge determined that L.A.G. went to R.M.’s office to discuss
marriage counseling in the hopes of repairing the marriage. The judge
found that R.M. could have left his office but waited until the police
arrived instead, indicating that R.M. was not afraid of L.A.G. Furthermore,
the court found that there was no evidence of a cycle of violence between
the parties or a past history of abuse. The court also noted that a final
restraining order would not be in the best interests of the parties’
four children and that a final restraining order could affect L.A.G.’s
position as a practicing attorney. Ultimately, the judge found that a
final restraining order was not necessary to protect R.M. from future
acts of domestic violence and dismissed both complaints.

On appeal, the New Jersey Appellate Division stated that there is a two-step
inquiry, under
Silver v. Silver, for the trial court when deciding a domestic violence case. First, the
judge must decide whether the abuser has committed one of the predicate
acts listed under
N.J.S.A. 2C:25-19(a). Some of the predicate acts listed under the statute include
harassment, criminal mischief, terroristic threats, stalking, and assault.
The judge must view any acts under a totality of the circumstances based
on the parties’ relationship and prior history. After determining
that a predicate act has been committed, the judge must then determine
whether a final restraining order is necessary to protect the victim from
future harm or abuse. The Appellate Division also stated that it must
defer to the trial court’s factual findings when they are supported
by adequate and credible evidence, especially since the trial court has
special expertise in this area.

R.M. argued, on appeal, that the trial court was wrong to find that a final
restraining order was not necessary. Specifically, R.M. claimed that the
court did not consider the nature of the predicate acts and the parties’
prior history. Lastly, R.M. argued that it was improper to consider the
best interests of the parties’ children in its determination. The
Appellate Division disagreed with R.M. The Appellate Division stated that
the trial court did consider the parties’ prior history of domestic
violence and it determined there was no history of domestic violence during
the parties’ twenty-four year marriage, aside from some foul language
on occasion. Additionally, the Appellate Division stated that a finding
that a predicate act occurred does not automatically warrant the issuing
of a final restraining order. Here, the Appellate Division found that
there was no history of domestic violence and that R.M. failed to demonstrate
that L.A.G. committed a physical act of violence against him. Lastly,
the Appellate Division stated that it was improper for the trial court
to rely on the best interests of the parties’ children when making
its determination, but that the trial court also based its decision on
other, independent factors. Ultimately, the Appellate Division agreed
with the trial court and affirmed its decision to deny R.M. a final restraining order.

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